Download Albaraka Banking Practices and more Essays (university) Law of Obligations in PDF only on Docsity!
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
PLA No. ____- In Suit No. 33/ In Re: Muhammad Tayyab Versus Al-Baraka Bank (Pakistan) Limited
APPLICATION ON BEHALF OF THE DEFENDANT (HEREINAFTER CALLED THE “APPLICANT”) UNDER SECTION 10 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 FOR THE GRANT OF UNCONDITIONAL LEAVE TO APPEAR AND DEFEND THE SUIT IN SUIT UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001 Respectfully Sheweth:
- That the titled suit is pending adjudication in this Learned Court wherein the next date of hearing is ______________.
- That the present application is being moved by Applicant within the statutory period of 30-days of service, as contemplated in Section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance” ) through Mr. Omer Ashraf, Regional Collection Manager, who is duly authorized officer of the defendant bank. At the outset the Applicant raises the following:
PRELIMINARY OBJECTIONS
a. That the titled suit has neither been properly framed nor legally constituted and merits to be dismissed on this ground alone.
b. That the suit is not maintainable in its present form.
c. That the Court established under a special law, is a court of limited jurisdiction and all the jurisdictional facts must exist before invoking the jurisdiction of a Special Court. If any of the jurisdictional fact is missing, the assumption of jurisdiction by Special Court would amount to defective or excessive exercise of jurisdiction, hence the titled suit is liable to be dismissed.
d. That the suit under Section 9(1) of the Ordinance is only maintainable by a customer if a financial institution committed a default in fulfillment of any obligation with regard to any finance. The Accumulative effect of Section 2 (c), 2(d), 2(f) & 9 of the Ordinance is that where a customer or a financial institution committed a default in fulfilment of any obligation with regard to any finance, the financial institution or such as the case may be, the customer, may institute a suit in the Banking Court. It is pertinent to mention here that there has been no default on the part of the Applicant in the fulfilment of any obligation with regard to finance availed by the Plaintiff hence the jurisdiction under the Ordinance is not attracted and the titled suit is liable to be dismissed.
e. That the Plaintiff is irregular in payment of Monthly Instalments and the same has been evident from the Statement of Account. As per the Repayment Schedule, out of total Sixty (60) Instalments, Plaintiff has only paid Thirty (30) monthly instalments to the Applicant and Twenty Seven (27) Monthly Instalments, excluding the future Three (03) instalments, are still outstanding against the Plaintiff.
f. That the Plaintiff is not the real owner of the Vehicle as the Vehicle in question is the asset of the Applicant and the same is also registered in the name of the Applicant and the Plaintiff will be entitled to get the Title of Ownership transferred in his own name after complete settlement of account, hence the titled suit is liable to be dismissed.
- Denied. Contents of the preceding paragraphs are reiterated. Plaintiff has been consistently not paying instalments and has committed various Events of Default and Termination under the Masharakah and Rental Agreement and has violated his side of the bargain.
- Denied vehemently. Plaintiff is grossly negligent and irregular in payment of Monthly Instalments and the same has been evident from the Statement of Account. As per the Repayment Schedule, out of total Sixty (60) Instalments, Plaintiff has only paid Thirty (30) monthly instalments to the Applicant and Twenty Seven (27) Monthly Instalments, excluding the future Three (03) instalments, are still outstanding against the Plaintiff. Plaintiff is gross, clear and malicious default of its payment obligations and has failed to make requisite payments, and has wilfully committed material breach of all agreements with the Applicant.
- Denied as incorrect. Contents of the preceding paragraphs are reiterated. It is pertinent to mention here that Plaintiff is irregular in payment of Monthly Instalments and the same has been evident from the Statement of Account. As per the Repayment Schedule. The Plaintiff was informed telephonically and through Notice time and again, to pay their outstanding monthly instalments on due date(s) but he always disinclined to pay the monthly instalments and ultimately bank repossessed the Vehicle, with no other option left with the Bank. It is submitted that the Plaintiff is not entitled to any relief from this Learned Court and the titled suit is liable to be dismissed on this score alone.
- Denied as incorrect. Contents of the preceding paragraphs are reiterated. Under Masharakah Agreement, Applicant is exercising its contractual rights and is asking Plaintiff to fulfil all of its obligations. Instant Suit is liable to dismissed.
- Denied as incorrect. Contents of the preceding paragraphs are reiterated. The Plaintiff is misrepresenting, misleading and misconstruing the facts to lead the Learned Court astray. The Plaintiff entered into a contract qua finance facility and is bound by terms and conditions of the Rental Agreement and made various representations and promises to the Applicant which admittedly he
has failed to fulfil and is concealing materials from the Learned Court with mala fide. The instant suit has no legal basis and is liable to be rejected and set aside at the outset. Applicant is exercising its legally binding rights under the Rental Agreement entered into by Plaintiff with his free consent. Applicant informed Plaintiff through notice and telephonically time and again of default, and due to contumacious, wilful and illegal conduct of Plaintiff was constrained to exercises its rights under the agreements. Plaintiff is in violations of his constitutional, statutory and contractual obligations.
- Denied as incorrect. No cause of action has accrued in favour of Plaintiff and against the Applicant. In fact, Plaintiff is in breach of the Lease Agreement and Rental Agreement and has failed to abide by his obligations of payment and other terms and conditions. The Plaintiff is blowing hot and cold in the same breath. Admittedly, Plaintiff by his own application, consent and volition approached the Applicant for entering into said agreements which are binding on him, and is now taking a somersault and denying his obligations to make payments under the very aforementioned agreements Plaintiff signed and entered into. It is pertinent to mention here that the Plaintiff has never approached the Applicant for issuance of Statement of Account. In short, Plaintiff has no cause of action against Applicant under the Financial Institutions (Recovery of Finances) Ordinance, 2001.
- Denied as incorrect. Contents of the preceding paragraphs are reiterated. It is pertinent to mention here that this Learned Court is established under a special law and is a court of limited jurisdiction and all the jurisdictional facts must exist before invoking the jurisdiction of a Special Court. If any of the jurisdictional fact is missing, the assumption of jurisdiction by Special Court would amount to defective or excessive exercise of jurisdiction. It is also pertinent to mention here that this Learned Court has no jurisdiction to adjudicate the titled suit, hence the titled suit is liable to be dismissed.
- That the Paragraph under reply is absolutely wrong and vehemently denied. Contents of the above paragraphs are reiterated for brevity. The suit has not been properly valued and
9.h. Whether the suit of the Plaintiff is illegal and based on false grounds and facts and withholds material facts from this learned Court considering the correct and true factual position of the transaction inter se the parties detailed above?
9.i. Whether the Plaintiff is irregular in payment of Monthly Instalments or not?
9.j. Whether the Plaintiff defaulted in making its due Monthly Instalments?
9.k. Whether the Applicants used any coercive measures against the Plaintiff for the recovery of the outstanding amount?
9.l. Whether the Applicant has a good defence and the suit cannot be decreed against it?
9.m. Whether the suit has been filed with mala fide intentions to pre-empt a suit for recovery to be filed by the Applicant against the Plaintiff?
9.n. Whether the suit is pre-mature?
9.o. Whether the relief being prayed for can be granted?
PRAYER
IN VIEW OF THE ABOVE It is therefore respectfully prayed that the Plaintiff’s suit be dismissed with costs.
IN THE ALTERNATIVE this Application may kindly be accepted and unconditional leave to appear and defend the suit be granted to the Applicant and the Plaintiff be directed to lead evidence in support of their claim.
ANY OTHER RELIEF which this Learned Court deems fit and appropriate may also be granted.
Al-Baraka Bank (Pakistan) Limited Applicant / Defendant Through
Barrister Ahmed Pansota Advocate High Court
Muhammad Umer Toor Advocate High Court Ahmed & Pansota Advocates & Legal Consultants 20-Sir Ganga Ram Mansions, The-Mall, Lahore.
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
PLA No. ____- In Suit No. 33/ In Re: Muhammad Tayyab Versus Al-Baraka Bank (Pakistan) Limited
REPLY OF APPLICATION UNDER ORDER XXXIX RULE 1 & 2 READ WITH SECTION 151 CPC FOR THE GRANT OF INTERIM INJUNCTION. Respectfully Sheweth :
- That the Respondent has filed an application for unconditional leave to appear and defend in the titled case, contents of which may kindly be read as integral part of this reply.
- Denied. Applicant has not a good prima-facie case in his favour.
- Denied. Balance of convenience does not lie in favour of the Applicant.
- Denied. That it is the Respondent / Defendant who will suffer irreparable loss and injury if the interim relief prayed for is granted.
PRAYER
IN VIEW OF THE ABOVE it is most respectfully prayed that the Application may kindly be dismissed with costs. ANY OTHER RELIEF that this learned Court deems fit and proper may also be granted.
Respondent Through
Barrister Ahmed Pansota Advocate High Court Ahmed & Pansota Advocates & Legal Consultants
20-Sir Ganga Ram Mansions, The-Mall, Lahore.
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
PLA No. ____- In Suit No. 33/ In Re: Muhammad Tayyab Versus Al-Baraka Bank (Pakistan) Limited
LIST OF DOCUMENTS FILED WITH THE PLA UNDER ORDER VIII, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908
- Copy of Power of Attorney
- Letter of Undertaking to Lease
- Lease/Ijarah Agreement/Rental Agreement
- Application Form
- Repayment Schedule / RPS
- Statement of Account
Al-Baraka Bank (Pakistan) Limited Applicant / Defendant Through
Barrister Ahmed Pansota Advocate High Court Ahmed & Pansota Advocates & Legal Consultants 20-Sir Ganga Ram Mansions, The-Mall, Lahore.
‘FARD PATA’
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
PLA No. ____- In Suit No. 33/ In Re: Muhammad Tayyab Versus Al-Baraka Bank (Pakistan) Limited ADDRESS OF THE APPLICANT / DEFENDANT Al-Baraka Bank (Pakistan) Limited 112 The-Mall, Rafi Mansions, Opposite Alfalah Building, Lahore.
Al-Baraka Bank (Pakistan) Limited Applicant / Defendant Through
Barrister Ahmed Pansota Advocate High Court Ahmed & Pansota Advocates & Legal Consultants 20-Sir Ganga Ram Mansions, The-Mall, Lahore.
IN THE COURT OF LEARNED JUDGE BANKING COURT NO. II, LAHORE
FOR Applicant / Defendant
Plaintiff/Appellant Muhammad Tayyab Applicant/Complainant ________________________ Petitioner/ Decree Holder Versus
Defendant/Respondent Al-Baraka Bank Limited Accused/Opponent ________________________ Judgment Debtor
Suit/Case: SUIT UNDER SECTION 9 OF THE FINANCIAL INSTITUTIONS (RECOVERY OF FINANCES) ORDINANCE, 2001.. I/We the undersigned do hereby nominate and appoint Barrister Ahmed Pansota, Muhammad Umer Toor Advocates High Court , Suleman Aslam, Jawad Tarar, Daraab Wali Furqan, Advocates High Court of M/s Ahmed & Pansota, Advocates & Legal Consultants, 20-Sir Ganga Ram Mansions, The Mall, Lahore to be the counsels in the above matter for me/us and on my/our behalf to appear, plead, act and answer in the above Court or any appellate Court or any other court to which the business is transferred in the above matter, and to sign and file petitions, statement, accounts, exhibits, compromises or other documents whatsoever, in connection with the said matter of any matter arising there from, and also to apply for and receive all documents or copies of documents, disposition etc., and to apply for and issue summons and other writs or subpoena and to apply for and get issued any arrest, attachment or other execution, warrant or order and to conduct any proceeding that may arise there out; and to apply for and receive payment of any or all sums or submit for the above matter to arbitration, and to employ any other Legal Practitioner authorizing him to exercise the Power and authorities hereby conferred on the Advocate whenever he may think fit to do so. AND to do all acts legally necessary to manage and conduct the said case in all respects, whether herein specified or not as may be proper and expedient. AND I/We hereby agreed to ratify and confirm all lawful acts done on my/our behalf under or by virtue of these presents or of the usual practice in such matter. PROVIDED always, that, if the case may be dismissed in default, if it be proceeded ex-parte the said counsel shall not be held responsible for the same, and hereby agree that in the event of the whole fee agreed by me to be paid to the advocate remaining unpaid he shall be entitled to withdraw from the prosecution of the said case until the same is paid. Accepted subject to terms regarding fee.
Executant ____________________
__________________ Barrister Muhammad Ahmed Pansota Advocate High Court
M. Umer Toor Daraab Wali Furqan Khuzaima Siddiqui Advocate High Court Advocate High Court Advocate
Ahmed & Pansota Advocates & Legal Consultants 20-Sir Ganga Ram Mansions, The Mall, Lahore.
